The senators have a key role, spelled out in the Constitution. The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.”
If he becomes a justice, Kavanaugh will replace retired Justice Anthony M. Kennedy, often a swing vote on the court. And while Congress makes laws, the Supreme Court can decide whether those laws are constitutional.
Here are five cases that illustrate how Supreme Court decisions impact the government and its citizens:
Marbury v. Madison (1803): In this early case Justice John Marshall (1755–1835), a distant cousin but political rival of Thomas Jefferson, defined powers of the Supreme Court. The case stemmed from a controversial move by the second president, John Adams, recalls Tony Mauro in the book, The Supreme Court: 20 Cases that Changed America, (Fall River Press; 2016): “Congress had authorized Adams to appoint 16 federal circuit judges and 42 justices of the peace as a parting gift of sorts before Thomas Jefferson took office.”
Full speed ahead, Adams filled the positions with Federalists to “preserve his party’s control of the judiciary and to frustrate the legislative agenda of Jefferson,” recounts Encyclopedia Britannica online.
However, William Marbury, a Federalist Party leader from Maryland, did not receive his commission before Jefferson became president. And Jefferson had the commission withheld. Marbury then petitioned the Supreme Court to issue a writ of mandamus to force action from Jefferson's secretary of the state, James Madison.
The Supreme Court took the case, and Chief Justice John Marshall, who had been secretary of state under John Adams, decided that Marbury had the right to his commission. But Marshall also ruled that “Congress did not have the power under the Constitution to give the Supreme Court authority to issue a write of mandamus to require that the commissions be delivered,” Mauro writes. “In that part of the ruling, Marshall said the federal law authorizing the high court to issue such writs violated the Constitution.”
In so doing, Marshall found that the court had broad power to strike down acts of Congress.
The story: Dred Scott was a slave who sought freedom for himself and his wife after his owner, army surgeon John Emerson, died in 1843. Emerson's widow refused to grant it, and the case went to trial in 1847, but Scott lost because he could not prove that he had been owned by Emerson’s widow. Three years later in an 1850 retrial, the St Louis circuit court ruled that Scott and his family were free. Emerson’s widow had left Missouri and given control of her late husband’s estate to her brother, John F.A. Sanford (his name was misspelled Sandford on court documents). Sanford became the defendant in the case. Two years later, the Missouri Supreme Court reversed the decision of the lower court.
The case was appealed to the Supreme Court. Chief Justice Roger B. Taney wrote that because Scott was black, he was not a citizen and had no right to sue. “In addition, this decision declared that the Missouri Compromise was unconstitutional and that Congress did not have the authority to prohibit slavery in the territories,” adds the Library of Congress website.
It was an attempt to resolve the slavery question in favor of the South, and it backfired. “Not surprisingly, the court’s decision enraged abolitionists, Republicans and others who desired to limit slavery’s expansion in the Western territories or even Northern states,” explains the Kansas City Public Library website. “Instead of removing slavery as a major political debate, the decision further exacerbated sectional tensions and became a key issue in the 1858 and 1860 political campaigns.”
Brown v. the Board of Education of Topeka (1954): Roughly 90 years after the Civil War, the Supreme Court ruled that separating children in public schools by race was unconstitutional.
The case centered around Linda Brown, a 12-year-old who girl lived close to an all-white school but had to take a bus to an all-black school. Her father, Oliver Brown, brought the case on her behalf. When it reached the Supreme Court, it was argued by Thurgood Marshall, later the first African-American Supreme Court justice.
Justice Earl Warren delivered the unanimous ruling that state-sanctioned segregation of public schools was a violation of the 14th Amendment, which states that all persons born or naturalized in the United States are citizens and no state shall make or enforce any law which shall abridge their privileges.
This marked the end of the separate but equal precedent set in 1896 in the case Plessy v. Ferguson, which unsuccessfully challenged the Separate Car Act in Louisiana. (Trains operating in the state were required to provide “equal but separate accommodations” for African- Americans.)
While Brown v. the Board of Education of Topeka represented an important victory, school districts around the country evaded or ignored it for years. Linda Brown died earlier this year.
Roe v. Wade (1973): If you don't know any other legal case, you've probably heard of Roe v. Wade. In this case, the Supreme Court decided women have abortion rights.
The case revolved around Jane Roe, a name used in court papers to protect the privacy of Norma McCorvey. The unmarried and pregnant Texas woman filed suit against Henry Wade, the district attorney of Dallas County, saying that the law violated the guarantee of personal liberty and the right to privacy implicitly guaranteed in the U.S. Constitution.
In deciding for Roe, the Supreme Court invalidated any state laws that prohibited first trimester abortions. But the case ignited a culture war that continues to this day. McCorvey died in 2017.
Obergefell v. Hodges (2015): James Obergefell and his partner, John Arthur, both of Ohio, had married in Maryland. When Arthur died, Obergefell wished to be listed as the surviving spouse. As this was not allowed under Ohio law, Obergefell sued Richard Hodges, director of Ohio’s Department of Health.
The 2015 Supreme Court decision was made with a 5-4 margin. Justice Anthony Kennedy wrote the majority opinion and argued that there was no reason to exclude gays from being allowed to married. The four justices siding with him were Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayer and Elena Kagan.
The four justices opposing the decision -- Chief Justice John Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel Alito Jr. -- argued that states decide marriage law, not the federal government.
Sources:
- Encyclopedia Britannica: Advice and Consent -- The U.S. Senate and the Supreme Court.
- Encyclopedia Britannica: Dred Scott decision.
- Landmark Cases.org: Background summary, Roe v. Wade.
- Library of Congress: Dred Scott
- PBS: Dred Scott's fight for freedom.
- William & Mary Law School: John Marshall, the Great Chief Justice.
- The Supreme Court: 20 Cases that Changed America, by Tony Mauro (Fall River Press; 2016).
- Supreme Court of the United States: Obergefell v. Hodges.
- USA Today: Norma McCorvey, 'Roe' in Roe v. Wade, is dead at 69, by Eliza Collins, Feb. 18, 2017.
- U.S. Courts.gov: History -- Brown v. Board of Education.
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